HomeMy WebLinkAboutCT 12-03; 201 Walnut, LLC; 2016-0051995; Local Improvement District Agreement6. The City is willing to approve the Development Permit prior to the construction of
the Improvements as requested by the Owner if Owner approves of and
consents to the formation of an assessment district to include the Property for the
purpose of financing the construction of the Improvements.
NOW, THEREFORE, IT IS AGREED between the parties as follows:
Section 1. Recitals.
The foregoing recitals are true and correct.
Section 2. City's Obligations.
The City shall approve the Development Permit promptly following the execution of this
Agreement by the Owner and compliance with all applicable City ordinances and other
requirements.
Section 3. Owner's Obligations.
Section 3.01.
Owner's Consent to and Approval of Formation of an Assessment District and Levy
of Assessments. In consideration for the approval of the Development Permit prior to
the completion of the construction of the Improvements, Owner hereby consents to
and approves of:
A. the inclusion of the Property in an assessment district which may be formed by
the City Council of the City for the purpose of financing the construction of the
Improvements (the "Assessment District");
B. the levy of an assessment against the Property (the "Assessment") in an amount
not to exceed the estimated cost of construction of the Improvements, together
with the estimated incidental costs of such construction and the estimated costs
of formation of the Assessment District and issuance of any bonds to be issued
to represent the Assessment. The foregoing costs constituting the Assessment
are set forth in Exhibit C attached hereto and incorporated herein by this
reference. The Assessment shall be subject to adjustment for inflation from the
date first written hereinabove until the date the Assessment is confirmed and
levied by the increase in the Construction Cost Index for Los Angeles as
contained in the Engineering News Record or, if the Construction Cost Index for
Los Angeles is no longer published, an equivalent index reasonably selected by
the City Engineer. In granting the consents and approvals set forth in this Section
3., Owner is acting for and on behalf of Owner, the Owner's successors, heirs,
assigns, and/or transferees and intends that such consents and approvals shall
be binding upon each and every such person.
Except as otherwise provided for in this Agreement, the consents and approvals
given by Owner shall be irrevocable.
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Section 3.02
Owner's Grant of a Proxy to the City for Assessment Ballot Procedure. Owner
hereby grants to the City a proxy to act for and on behalf of Owner, the Owner's
successors, heirs, assigns, and/or transferees for the limited purpose of completing
and submitting an assessment ballot in support of the levy of the Assessment in the
proceedings to form the Assessment District.
In granting such proxy, Owner is acting for and on behalf of Owner, the Owner's
successors, heirs, assigns, and/or transferees and intends that such proxy shall be
binding upon each and every such person.
Except as otherwise provided for in this Agreement, the proxy granted by Owner
shall be irrevocable.
Section 4. Owner's Representations and Waiver of Rights.
Section 4.01
Owner's Representations. Owner hereby represents as follows:
A. Owner understands and acknowledges that:
1. Article XIIID of the Constitution of the State of California ("Article XIIID") and
the Proposition 218 Omnibus Implementation Act (Government Code Section
53750 and following) (the "Implementation Act") (Article XIIID and the
Implementation Act may be referred to collectively as the "Assessment Law")
establish certain procedures and requirements which apply when any agency
such as the City considers the levy of assessments upon real property.
2. The requirements established by the Assessment Law include the following:
a. The proportionate special benefit derived by each parcel to be assessed
must be determined in relationship to the entirety of the capital cost of the
improvement for which the assessment is to be levied;
b. No assessment may be imposed on any parcel which exceeds the
reasonable cost of the proportional special benefit conferred on that parcel
from the improvement for which the assessment is to be levied;
c. Only special benefits are assessable; and
d. Parcels within an assessment district that are owned or used by any
agency, the State of California or the United States of America shall not be
exempt from assessment unless the agency proposing to levy the
assessment can demonstrate by clear and convincing evidence that those
publicly owned parcels in fact receive no special benefit from the
improvement for which the assessment is being levied.
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3. The procedures established by the Assessment Law include:
a. The agency which proposes to levy an assessment (the "Agency") shall
identify all parcels which will have a special benefit conferred upon them
from the improvement for which the assessment is proposed to be levied
and upon which an assessment is proposed to be imposed.
b. All assessments must be supported by a detailed engineer's report
prepared by a registered professional engineer certified by the State of
California.
c. Prior to levying a new assessment , the Agency must give written notice
by mail (the "Assessment Notice") to the record owner, i.e., the owner of a
parcel whose name and address appears on the last equalized secured
property tax roll, of each parcel proposed to be assessed. The
Assessment Notice must include: (i) the total amount of the proposed
assessment chargeable to the entire assessment district, (ii) the amount
chargeable to the record owner's parcel, (iii) the duration of the
assessment payments, (iv) the reason for the assessment, (v) the basis
on which the amount of the proposed assessment was calculated, and (vi)
the date, time and location of a public hearing on the proposed
assessment.
d. The Assessment Notice must contain an assessment ballot that includes a
place where the person returning the assessment ballot may indicate his
or her name, a reasonable identification of the parcel, and his or her
support or opposition to the proposed assessment. The Assessment
Notice must also include, in a conspicuous place, a summary of the
procedures for the completion, return and tabulation of assessment
ballots.
e. At the time, date and place stated in the Assessment Notice, the Agency
shall conduct a public hearing upon the proposed assessment. At such
public hearing, the Agency shall consider all objections or protests, if any,
to the proposed assessment. At such public hearing, any interested
person shall be permitted to present written or oral testimony.
f. At the conclusion of the public hearing, the Agency shall tabulate the
assessment ballots submitted, and not withdrawn, in support or opposition
to the proposed assessment. If there is a majority protest against the
imposition of a new assessment, the Agency may not impose the
assessment. A majority protest exists if the assessment ballots submitted,
and not withdrawn, in opposition to the proposed assessment exceed the
assessment ballots submitted, and not withdrawn, in favor of the proposed
assessment. In tabulating the assessment ballots, the assessment ballots
shall be weighted by the amount of the proposed assessment to be
imposed upon each parcel for which an assessment ballot was submitted.
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4. The description of the requirements and procedures established by and
contained in the Assessment Law set forth above are intended only to
summarize certain of such requirements and procedures.
5. The City would not agree to issue the Development Permit prior to the
construction of the Improvements unless the City is assured that it will be
legally able to impose the Assessment on the Property. The assurance of the
City's legal ability to impose the Assessment on the Property is both a
material inducement to and a material consideration for the City to enter into
this Agreement and agree to issue the Development Permit prior to the
construction of the Improvements.
B. Owner has had a reasonable opportunity to thoroughly read and review the
Assessment Law in its entirety and has further had a reasonable opportunity to
consult with Owner's attorney regarding the Assessment Law and the terms and
conditions of this Agreement.
Section 4.02
Waiver of Rights
A. In consideration of the approval by the City of the Development Permit prior to
the construction of the Improvements, Owner hereby waives Owner's rights
under the Assessment Law to:
1. object or protest the ordering by the City of the construction of the
Improvements and the imposition of the Assessment at such public hearing
so long as the amount of the Assessment does not exceed the amount set
forth in Exhibit C hereto adjusted for inflation pursuant to Section 3.01 B
above;
2. submit an assessment ballot in support of or in opposition to the imposition of
the Assessment so long as the amount of the Assessment does not exceed
the amount set forth in Exhibit C hereto adjusted for inflation pursuant to
Section 3.01 B above; and
3. file or bring any protest, complaint or legal action of any nature whatsoever
challenging the validity of the proceedings to form the Assessment District
and/or the validity of the imposition of the Assessment on the Property.
B. In order that the City may be assured of its ability to legally impose the
Assessment on the Property and, therefore, be willing to enter into this
Agreement and agree to approve the Development Permit prior to the
construction of the Improvements, Owner represents and warrants that Owner
has knowingly, intelligently and voluntarily waived for and on behalf of Owner,
Owner's successors, heirs, assigns and/or transferees, each and every one of
the rights specified in Section 4.02A above.
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Section 5. Alternative Satisfaction of Owner's Obligations
Owner's obligations under Section 3 above may be satisfied by paying the amount set
forth in Exhibit "C" adjusted for inflation at any time prior to the formation of the
assessment in which case a release of this Agreement shall be recorded in the office of
the San Diego County Recorder
Section 6. General Provisions.
Section 6.01
Conflict with Other Agreements or Requirements of the City. Except as specifically
provided in this Agreement, nothing contained herein shall be construed as releasing
Owner from any condition of development of the Property or requirement imposed
by any other agreement with or requirement of the City.
Section 6.02
General Standard of Reasonableness. Any prov1s1on of this Agreement which
requires the consent, approval, discretion or acceptance of any party hereto or any
of their respective employees, officers or agents shall be deemed to require that
such consent, approval or acceptance not be unreasonably withheld or delayed,
unless such provision expressly incorporates a different standard.
Section 6.03
Entire Agreement; Amendment. This Agreement contains all of the agreements of
the parties hereto with respect to the matters contained herein and no prior or
contemporaneous agreement or understandings, oral or written, pertaining to any
such matters shall be effective for any purpose. No provision of this Agreement may
be modified, waiver, amended or added to except by a writing signed by the party
against which the enforcement of such modification, waiver, amendment or addition
is or may be sought.
Section 6.04
Notices. Any notice, payment or instrument required or permitted by this Agreement
to be given or delivered to either party shall be deemed to have been received when
personally delivered or seventy-two (72) hours following deposit of the same in any
United States Post Office in California, registered or certified, postage prepaid,
addressed as follows:
Owner: 201 Walnut, LLC
17828 Villamoura Drive
Poway, CA 92064
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City: City of Carlsbad
Attn: City Manager
1200 Carlsbad Village Dr
Carlsbad CA 92008
Each party may change its address for delivery of notice by delivering written notice
of such change of address to the other party.
Section 6.05
Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto.
Section 6.06
Governing Law. This Agreement and any dispute ans1ng hereunder shall be
governed by and interpreted in accordance with the laws of the State of California.
Section 6.07
Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by any other party, or the failure by a party to exercise
its rights under the default of any other party, shall not constitute a waiver of such
party's right to insist and demand strict compliance by any other party with the terms
of this Agreement thereafter.
Section 6.08
Singular and Plural; Gender. As used herein, the singular of any work includes the
plural, and terms in the masculine gender shall include the feminine.
Section 6.09
Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original.
Section 6.10
Construction of Agreement. This Agreement has been reviewed by legal counsel for
both the City and the Owner and shall be deemed for all purposes to have been
jointly drafted by the City and the Owner. No presumption or rule that ambiguities
shall be construed against the drafting party shall apply to the interpretation or
enforcement of this Agreement. The language in all parts of this Agreement, in all
cases, shall be construed as a whole and in accordance with its fair meaning and
not strictly for or against any party and consistent with the provisions hereof, in order
to achieve the objectives of the parties hereunder. The captions of the sections and
7 of 13 REV 01/25/13
subsections of this Agreement are for convenience only and shall not be considered
or referred to in resolving questions of construction.
Section 6.11
Recitals; Exhibits. Any recitals set forth above and any attached exhibits are
incorporated by reference into this Agreement.
Section 6.12
Authority of Signatories. Each signatory and party hereto hereby represents and
warrants to the other party that it has legal authority and capacity and direction from
its principal to enter into this Agreement, and that all resolutions and/or other actions
have been taken so as to enable such party to enter into this Agreement.
Section 7. Covenant Running with the Land
The parties hereto intend that the burdens and obligations of the Owner under Section 3
above constitute a covenant running with the land and that such covenant shall be
binding upon all transferees of the Property.
[End of page. Next page is signature page.]
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LEGAL DESCRIPTION
Order Number: NCS-629671-SD
Page Number: 8
Real property in the City of Carlsbad, County of San Diego, State of California, described as
follows:
PARCEL 1:
A PORTION OF THUM LANDS, TRACT 216, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1681, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 9, 1915. TOGETHER WITH
THOSE PORTIONS OF WALNUT AVENUE AND LINCOLN STREET VACATED BY RESOLUTION NO.
96-59, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, A CERTIFIED COPY
RECORDED APRIL 2, 1996 AS FILE NO. 1996-0163578 OF OFFICIAL RECORDS, ALL AS SET
FORTH IN THAT CERTAIN CERTIFICATE OF COMPLIANCE RECORDED APRIL 18, 2007 AS FILE
NO. 2007-0261639 OF OFFICIAL RECORDS, ALL DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF SAID TRACT 216, SAID POINT BEING 30.00 FEET,
MEASURED AT RIGHT ANGLES, TO THE CENTERLINE OF GARFIELD STREET AND 40.00 FEET,
MEASURED AT RIGHT ANGLES, FROM WALNUT STREET; THENCE SOUTHEASTERLY ALONG THE
NORTHEASTERLY RIGHT-OF-WAY LINE OF GARFIELD STREET SOUTH 34°33'00" EAST 66.69
FEET; THENCE LEAVING SAID NORTHEASTERLY RIGHT-OF-WAY LINE NORTH 55°26'37" EAST
91.00 FEET; THENCE NORTH 34°33'00" WEST 76.68 FEET, TO THE SOUTHEASTERLY RIGHT-OF
WAY LINE OF WALNUT AVENUE, SAID POINT BEING 30.00 FROM THE CENTERLINE OF SAID
STREET; THENCE SOUTHWESTERLY ALONG SAID RIGHT-OF-WAY LINE SOUTH 55°27'00" WEST
71.00 FEET, TO THE BEGINNING OF A TANGENT CURVE, CONCAVE EASTERLY, HAVING A
RADIUS OF 20.00 FEET; THENCE ALONG SAID CURVE AN ARC DISTANCE OF 20.94 FEET
THROUGH A CENTRAL ANGLE OF 60°00'00" TO A POINT ON A NON-TANGENT LINE, SAID
POINT BEING 40.00 FEET FROM THE CENTERLINE OF WALNUT AVENUE, THE RADIAL BEARING
AT SAID POINT BEING SOUTH 85°27'00" WEST; THENCE SOUTH 55°27'00" WEST 2.68 FEET TO
THE POINT OF BEGINNING.
PARCEL 2:
A PORTION OF THUM LANDS, TRACT 216, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1681, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 9, 1915, AS SET FORTH IN THAT
CERTAIN CERTIFICATE OF COMPLIANCE RECORDED APRIL 18, 2007, AS FILE NO. 2007-
0261640 OF OFFICIAL RECORDS, AND AS DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF SAID TRACT 216, SAID POINT BEING 30.00 FEET,
MEASURED AT RIGHT ANGLES, TO THE CENTERLINE OF GARFIELD STREET AND 40.00 FEET,
MEASURED AT RIGHT ANGLES, FROM WALNUT STREET; THENCE SOUTHEASTERLY ALONG THE
NORTHEASTERLY RIGHT-OF-WAY LINE OF GARFIELD STREET SOUTH 34°33'00" EAST 66.69
FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY RIGHT-
OF-WAY LINE NORTH 55°26'37" EAST 91.00 FEET; THENCE SOUTH 34°33'00'EAST 66.68 FEET;
THENCE SOUTH 55°26'14" WEST 91.00 TO THE NORTHEASTERLY RIGHT-OF-WAY LINE OF
GARFIELD STREET, SAID POINT BEING 30.00 FEET FROM THE CENTERLINE OF SAID STREET;
THENCE NORTHWESTERLY ALONG THE SOUTHEASTERLY RIGHT-OF WAY LINE OF GARFIELD
STREET NORTH 34°33'00" WEST 66.69 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL 3:
A PORTION OF THUM LANDS, TRACT 216, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
Arst American Title Insurance Company
[0 4 1 '3
Order Number: NCS-629671-SD
Page Number: 9
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1681, FILED IN THE OFFICE OF
THE COUN1Y RECORDER OF SAN DIEGO COUN1Y, DECEMBER 9, 1915. TOGETHER WITH
THOSE PORTIONS OF WALNUT AVENUE AND LINCOLN STREET VACATED BY RESOLUTION NO.
96-59, A RESOLUTION OF THE CI1Y COUNCIL OF THE CI1Y OF CARLSBAD, A CERTIFIED COPY
RECORDED APRIL 2, 1996 AS FILE NO. 1996-0163578 OF OFFICIAL RECORDS, ALL AS SET
FORTH IN THAT CERTAIN CERTIFICATE OF COMPLIANCE RECORDED APRIL 18, 2007 AS
INSTRUMENT NO. 2007-0261641 OF OFFICIAL RECORDS, ALL DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF SAID TRACT 216, SAID POINT BEING 30.00 FEET,
MEASURED AT RIGHT ANGLES, TO THE CENTERLINE OF GARFIELD STREET AND 40.00 FEET,
MEASURED AT RIGHT ANGLES, FROM WALNUT STREET; THENCE NORTHEASTERLY ALONG THE
SOUTHEASTERLY RIGHT-OF-WAY LINE OF WALNUT AVENUE NORTH 55°27'00" EAST 2.68 FEET
TO THE BEGINNING OF A NON TANGENT CURVE, THE RADIAL BEARING TO SAID POINT BEING
NORTH 85°27'00" EAST; THENCE ALONG SAID CURVE 20.94 FEET THROUGH A CENTRAL ANGLE
OF 60°00'00" TO A POINT ON A TANGENT LINE, SAID POINT BEING 30.00 FEET SOUTHERLY
FROM THE CENTERLINE OF WALNUT AVENUE; THENCE NORTHEASTERLY ALONG THE
SOUTHEASTERLY RIGHT OF WAY LINE OF SAID WALNUT AVENUE NORTH 55°27'00" EAST 71.00
FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY
LINE NORTH 55°27'00" EAST 81.00 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
SOUTHERLY, HAVING A RADIUS OF 20.00 FEET; THENCE ALONG SAID CURVE AN ARC
DISTANCE OF 31.42 FEET THROUGH A CENTRAL ANGLE OF 90°00'00" TO A POINT ON THE
SOUTHWESTERLY RIGHT-OF-WAY LINE OF LINCOLN STREET, SAID POINT BEING 30.00 FEET
FROM THE CENTERLINE OF SAID LINCOLN STREET; THENCE ALONG SAID SOUTHWESTERLY
RIGHT-OF-WAY LINE SOUTH 34°33'00" EAST 190.01 FEET; THENCE SOUTH 55°25'51" WEST
10.00 FEET TO THE MOST EASTERLY CORNER OF SAID TRACT 216; THENCE ALONG THE
SOUTHERLY LINE OF SAID TRACT 216 SOUTH 55°25'51" WEST 91.00 FEET; THENCE NORTH
34°33'00" WEST 210.04 FEET TO THE TRUE POINT OF BEGINNING.
APN: 204-131-01-00 (AFFECTS: PARCEL ONE); 204-131-02-00 (AFFECTS: PARCEL 2) AND 204-
131-03-00 (AFFECTS: PARCEL 3)
Rrst American Title Insurance Company
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EXHIBIT B
DESCRIPTION OF THE IMPROVEMENTS
EXHIBIT C
THE ASSESSMENT
Undergrounding of utilities along Walnut Avenue, Lincoln Street and Garfield
Street at the project frontage
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Permit#:
Date:
Entered By:
PAVING
BASE
SIDEWALK
CURB & GUTTER
PAVEMENT PREP.
CLEAR & GRUB
UNDERGROUND u·r
SEWER
WATER
FIRE HYDRANT
STREET LIGHT
DRIVEWAY APROACH
SUBTOTAL
DESIGN
CONTINGENCY (20%)
ASSESS. DISTRICT COST
PLAN CHECK
INSPECTION
TOTAL
I
I
I
IMPROVEMENT
CALCULATION SHEET
GR 14-341 Frontage:(LF) 1527.61
08/20/151 Drive Way Width:(LF) J n/a
I Sidewalk Width:(LF) J n/a
Quantity Cost
~F $0
~F $0
OSF $0
LF $0
OSF $0
I SF $0
527.61 LF $79,142
LF $0
LF $0
EA $0
EA $0
OSF $0
$118,586
$11,871
$15,828
$2,500
$1,899
$950
$112,190
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